Court hears case on Biden White House allegedly pressuring Twitter about COVID misinformation

Presidents use the bully pulpit to pressure private actors to do their will, whether John F. Kennedy to lower steel prices or Joe Biden to stop purported COVID-19 misinformation. Is that policy advocacy or unconstitutional coercion? 

The 6th U.S. Circuit Court of Appeals, in oral argument Thursday, grappled with the consequences of arguably censoring the executive branch to prevent it from indirectly censoring Twitter users and whether the Department of Health and Human Services could legally remedy whatever actions Twitter takes against users.

The three-judge panel, all appointed by Republican presidents, seemed receptive to the argument that Twitter's sanctions against users got stiffer after public pressure from the White House, Surgeon General Vivek Murthy and other federal officials. 

That argument didn't fly with U.S. District Judge Edmund Sargus, who concluded Twitter was already "ramp[ing] up" enforcement of its COVID misinformation policy before the feds allegedly "commandeered" it to censor theoretical cognitive scientist Mark Changizi, lawyer Michael Senger and stay-at-home father Daniel Kotzin.

They are represented by the New Civil Liberties Alliance (NCLA), which is also representing censored doctors in conjunction with Missouri and Louisiana attorneys general against the feds.

That case got the green light to proceed by U.S. District Judge Terry Doughty, who said in March the evidence showed the "threat of future censorship is substantial." 

The May 26 hearing on the plaintiffs' motion for preliminary injunction in the parallel case didn't go well for the feds, according to Missouri Attorney General Andrew Bailey.

Bailey says Doughty compared the case to George Orwell's "1984" and that he challenged the government to name one political progressive censored for misinformation.

Bailey said the government's response was "a political opponent of Joe Biden" –  likely referring to vaccine skeptic and presidential candidate Robert F. Kennedy Jr., who is fronting a class-action suit against the feds for censorship.

The White House is also facing a threatened subpoena from the House Judiciary Committee if it doesn't voluntarily turn over documents on alleged coercion of companies to censor speech.

NCLA lawyer John Vecchione reminded the 6th Circuit judges their colleagues frowned on the University of Michigan chilling the speech of students through its bias response team, which was disbanded after a rough hearing. The difference in this case is "you have real injury," he said.

He also said Twitter conducted "very small moderation" such as 12-hour suspensions "before the government started pounding" on it, at which point users got kicked off. And he emphasized the facts didn't have to be "pristine" under the modest pleading standard at this stage of litigation.

Judge Helene White questioned how government representatives speaking on public policy, by itself, could constitute coercion.

Vecchione responded they could also be "in cahoots" – meaning "the company just didn't want the fight" so it caved to the pressure. He also said the Justice Department could bring tech companies to heel just by changing its interpretation of Section 230 immunity, without Congress statutorily removing their liability shield.

Section 230 refers to a part of federal communications law that essential protects social media sites from liability from third-party content. 

When Judge Danny Boggs compared that hypothetical to a new administration simply opposing affirmative action, Vecchione said this administration's actions would be like asking universities to disclose who was admitted under racial preferences "and then the schools started throwing people out." 

Murthy and HHS are "actors who shouldn't even be acting on this playground," Vecchione said, describing them as Biden's "flying monkeys" from "The Wizard of Oz."

Justice Department lawyer Daniel Winik laid out the chronology of federal pressure on tech companies, starting with then-White House press secretary Jen Psaki in May 2021, Murthy's advisory that July, then his request for information (RFI) on COVID misinformation the following March. 

Even if internal emails revealed that company employees worried "we're in really big trouble" if they don't censor to the government's liking, Twitter punished the plaintiffs before any of that, Winik said. 

He also said the 6th Circuit already deemed speculation about conversations with the feds too little for legal standing, when it tossed a lawsuit by a man denied a gun purchase after the FBI visited the dealer to warn him the prospective buyer "keeps" problematic "company." 

This boils down to "a series of very general statements about public policy" that the plaintiffs seek to prohibit as unconstitutional coercion whenever "some broader overlay of government regulation" is in the background, according to Winik.

Judges Boggs and John Bush — it wasn't always clear which was speaking on the audio livestream — pushed back that Twitter "certainly" sanctioned users in "more strenuous" ways following federal pressure.

"What if there was a very important permit pending" before an agency, one of them asked: "Don't you have a wink-wink, nod-nod?" 

One asked if Murthy even had the statutory authority to make the RFI, comparing it to the Obama administration's controversial "Dear Colleague" letter on Title IX that led colleges nationwide to rescind protections for accused students in sexual misconduct proceedings. The surgeon general simply "invited people who were interested to send him information," Winik insisted.

In his rebuttal, Vecchione distinguished the gun purchase case – Turaani v. Wray – from this one because the FBI agent who visited the gun dealer asked questions "in his lane" as a federal agent. He reiterated that at this pleading stage, "the inferences have to go to the plaintiff" that ramped-up enforcement by Twitter is attributable to federal coercion.

"Twitter has every incentive to let people go to their platform" to earn revenue, and in censoring users, the inference is "they aren't doing it for economic reasons," Vecchione said.